Christiancy, J.
As a general rule, a defendant in ejectment is at liberty to controvert the plaintiff’s title. If the plaintiff' claims that defendant is estopped to deny his title, he must show the facts constituting the estoppel. ■ This the plaintiff undertook to do by the introduction of the contract with Guilfoil, with certain evidence tending, as he claims, to show that Guilfoil went into possession under it, and that defendant claimed the premises through Guilfoil by a deed from his widow and heirs.
It is not claimed that Guilfoil would be estopped by the contract alone from denying plaintiff’s title. If estopped at all, it is by having obtained from the plaintiff the possession of the land by means, and on the faith, of the contract» [297]*297or by having placed himself in a position which estopped him from denying that he thns obtained the possession.
If he did thus obtain it, he would have been estopped while he continued in possession from denying any right or title of the plaintiff, expressly or by fair implication asserted or perhaps claimed by him in the contract.
The ground of this estoppel is, that the vendor gives up the possession to the vendee, and the latter obtains it, on the faith of the contract, and it would be a 'violation of good faith, and a fraud on the vendor, to allow the vendee, while he remains in the possession thus obtained, to deny such right or title of the vendor, as the latter by the contract claimed to have, or contracted to convey. Under such circumstances, the vendee, if he would contest such right or title, must first restore the possession to the vendor, and place him in statu quo, with all the advantages he had before he parted with the possession.
It is the obtaining the possession from the vendor, under and on the faith of the contract, and his obligation to restore the possession in case of a breach, which create the estoppel, if it exists. If the vendor have no possession, actual or constructive, it would seem to follow that he could not transfer it, and that, this fact appearing, there would be no estoppel.—Chettle v. Pound, 1 Ld. Rayd., 746. But as the vendee may estop himself from denying the title, so he may, doubtless,, under some circumstances, estop himself from denying the possession or right of possession of the vendor, and the fact of his having obtained it from him.
Thns, if A and B enter into a contract for the sale by the former to the latter of a piece of land, and A, by the contract, expressly or by fair implication, asserts a right to the possession and agrees to transfer it to B, and the latter, without any intimation of an intention to repudiate or give [298]*298up the contract, goes into the possession, he would doubtless be estopped to deny that he obtained it from the vendor by means of the contract.
But if A, by the contract, neither expressly or by implication asserts any possession, or right of possession, and does not assume to transfer it, I see no ground upon which the vendee can properly be said to have gone into the possession under the contract, or could be held estopped to deny the possession or the right of the possession, of the vendor at its date. His denial would not be inconsistent with the contract, or any right asserted by it.
And as to an estoppel of the vendee to deny the title of the vendor, if A, in the case just supposed, has by the contract asserted any claim to a particular title or interest, and agreed to convey the same, or his right or interest in it, to. the vendee, — such as an undivided interest or other portion, or his claim through some particular title or instrument mentioned, — the vendee, though entering under the contract and estopped to deny the vendor’s right of possession, and perhaps the particular title or interest claimed by the vendor, would not be estopped to deny any other title or interest of the vendor, except that which he had by the contract professed to claim.
But when the vendor, as in this case, does not by his contract set forth, allude to, or undertake to convey any particular estate, title, interest or claim, but merely agrees to quit-claim such right, title, and interest as he may at the date of the contract have in the premises, — a contract which will be fully satisfied by the execution and delivery of the deed, whether he had or convoys any interest or not, — the most he can be said to assert (and it is doubtful if he can be said to assert even this) is that he claims to have some right, title or interest, which, if he has it, is susceptible of being conveyed or transferred by such quitclaim.
[299]*299And, as the vendee cannot be held conclusively to admit any other or greater title or interest in the vendor than by his contract he appears to have claimed, it is difficult to see any ground upon which the vendee, though going into possession, can be estopped from denying any particular title or interest which the vendor may set up on the trial; since no claim to any one of these was asserted, nor, therefore, admitted by the contract; and though each should be disproved, or the vendee should prove any title in himself, less than a full and perfect title to the whole, this does not show that the vendor did not have some other interest or right, or all that, by the contract, he claimed to have; and the vendee is, at most, only estopped from denying that he had none at all.—See Sparrow v. Kingman, 1 N. Y., 242; Bigelow v. Finch, 11 Barb., and authorities cited in these cases. Besides the want of mutuality, there is no such certainty as is required to sustain, an estoppel.—3 Coke Lit. (Thomas’ Ed.), 431; Right ex d. Jefferys v. Bucknell, 2 B. & Ad., 278; 2 Smith’s Lead. C., 457.
But to estop the defendant from denying the title of the plaintiff in any form, or to any extent, in the present case, it was incumbent on the plaintiff to show that Guilfoil obtained the possession from the plaintiff under the contract. To do this he must show that he had the possession, or the right of possession, before the contract, and that he did transfer it to the defendant and give him the possession; or that the defendant, under the circumstances, is estopped to deny his possessory rights.
There was no proof tending to show that the plaintiff ever had any actual possession, or that he actually delivered possession to G-uilfoil, but the whole tendency of the evidence was the other way. He might, if the premises were vacant at the date of the contract, have shown a con-[300]*300structure possession, or right of possession, by showing title in himself, which would give him the right of possession, or possession in law. This he undertook to do by the introduction of his tax deed, but this being void, he failed to show any possession in himself, actual or constructive, and therefore necessarily failed to show that he had transferred the possession to Guilfoil through whom, defendant claimed.
He gave evidence, however, tending to show that Guilfoil, after the date of the contract, went. into the possession, claiming under it. And to determine whether the possession thus taken estopped him from denying the plaintiff’s possession or right of possession, we must consider the possession with reference to the provisions of the contract.
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Christiancy, J.
As a general rule, a defendant in ejectment is at liberty to controvert the plaintiff’s title. If the plaintiff' claims that defendant is estopped to deny his title, he must show the facts constituting the estoppel. ■ This the plaintiff undertook to do by the introduction of the contract with Guilfoil, with certain evidence tending, as he claims, to show that Guilfoil went into possession under it, and that defendant claimed the premises through Guilfoil by a deed from his widow and heirs.
It is not claimed that Guilfoil would be estopped by the contract alone from denying plaintiff’s title. If estopped at all, it is by having obtained from the plaintiff the possession of the land by means, and on the faith, of the contract» [297]*297or by having placed himself in a position which estopped him from denying that he thns obtained the possession.
If he did thus obtain it, he would have been estopped while he continued in possession from denying any right or title of the plaintiff, expressly or by fair implication asserted or perhaps claimed by him in the contract.
The ground of this estoppel is, that the vendor gives up the possession to the vendee, and the latter obtains it, on the faith of the contract, and it would be a 'violation of good faith, and a fraud on the vendor, to allow the vendee, while he remains in the possession thus obtained, to deny such right or title of the vendor, as the latter by the contract claimed to have, or contracted to convey. Under such circumstances, the vendee, if he would contest such right or title, must first restore the possession to the vendor, and place him in statu quo, with all the advantages he had before he parted with the possession.
It is the obtaining the possession from the vendor, under and on the faith of the contract, and his obligation to restore the possession in case of a breach, which create the estoppel, if it exists. If the vendor have no possession, actual or constructive, it would seem to follow that he could not transfer it, and that, this fact appearing, there would be no estoppel.—Chettle v. Pound, 1 Ld. Rayd., 746. But as the vendee may estop himself from denying the title, so he may, doubtless,, under some circumstances, estop himself from denying the possession or right of possession of the vendor, and the fact of his having obtained it from him.
Thns, if A and B enter into a contract for the sale by the former to the latter of a piece of land, and A, by the contract, expressly or by fair implication, asserts a right to the possession and agrees to transfer it to B, and the latter, without any intimation of an intention to repudiate or give [298]*298up the contract, goes into the possession, he would doubtless be estopped to deny that he obtained it from the vendor by means of the contract.
But if A, by the contract, neither expressly or by implication asserts any possession, or right of possession, and does not assume to transfer it, I see no ground upon which the vendee can properly be said to have gone into the possession under the contract, or could be held estopped to deny the possession or the right of the possession, of the vendor at its date. His denial would not be inconsistent with the contract, or any right asserted by it.
And as to an estoppel of the vendee to deny the title of the vendor, if A, in the case just supposed, has by the contract asserted any claim to a particular title or interest, and agreed to convey the same, or his right or interest in it, to. the vendee, — such as an undivided interest or other portion, or his claim through some particular title or instrument mentioned, — the vendee, though entering under the contract and estopped to deny the vendor’s right of possession, and perhaps the particular title or interest claimed by the vendor, would not be estopped to deny any other title or interest of the vendor, except that which he had by the contract professed to claim.
But when the vendor, as in this case, does not by his contract set forth, allude to, or undertake to convey any particular estate, title, interest or claim, but merely agrees to quit-claim such right, title, and interest as he may at the date of the contract have in the premises, — a contract which will be fully satisfied by the execution and delivery of the deed, whether he had or convoys any interest or not, — the most he can be said to assert (and it is doubtful if he can be said to assert even this) is that he claims to have some right, title or interest, which, if he has it, is susceptible of being conveyed or transferred by such quitclaim.
[299]*299And, as the vendee cannot be held conclusively to admit any other or greater title or interest in the vendor than by his contract he appears to have claimed, it is difficult to see any ground upon which the vendee, though going into possession, can be estopped from denying any particular title or interest which the vendor may set up on the trial; since no claim to any one of these was asserted, nor, therefore, admitted by the contract; and though each should be disproved, or the vendee should prove any title in himself, less than a full and perfect title to the whole, this does not show that the vendor did not have some other interest or right, or all that, by the contract, he claimed to have; and the vendee is, at most, only estopped from denying that he had none at all.—See Sparrow v. Kingman, 1 N. Y., 242; Bigelow v. Finch, 11 Barb., and authorities cited in these cases. Besides the want of mutuality, there is no such certainty as is required to sustain, an estoppel.—3 Coke Lit. (Thomas’ Ed.), 431; Right ex d. Jefferys v. Bucknell, 2 B. & Ad., 278; 2 Smith’s Lead. C., 457.
But to estop the defendant from denying the title of the plaintiff in any form, or to any extent, in the present case, it was incumbent on the plaintiff to show that Guilfoil obtained the possession from the plaintiff under the contract. To do this he must show that he had the possession, or the right of possession, before the contract, and that he did transfer it to the defendant and give him the possession; or that the defendant, under the circumstances, is estopped to deny his possessory rights.
There was no proof tending to show that the plaintiff ever had any actual possession, or that he actually delivered possession to G-uilfoil, but the whole tendency of the evidence was the other way. He might, if the premises were vacant at the date of the contract, have shown a con-[300]*300structure possession, or right of possession, by showing title in himself, which would give him the right of possession, or possession in law. This he undertook to do by the introduction of his tax deed, but this being void, he failed to show any possession in himself, actual or constructive, and therefore necessarily failed to show that he had transferred the possession to Guilfoil through whom, defendant claimed.
He gave evidence, however, tending to show that Guilfoil, after the date of the contract, went. into the possession, claiming under it. And to determine whether the possession thus taken estopped him from denying the plaintiff’s possession or right of possession, we must consider the possession with reference to the provisions of the contract. The substance of the contract was this: that, upon the payment of sixty dollars and interest by Guilfoil at certain times, plaintiff agrees to sell and convey to Guilfoil, — not the land mentioned in the contract, — but only the right, title, and interest then held by him of, in, and to the said land, — not stating what such right, title or interest was or was claimed to be, or whether any right or interest whatever. But the' plaintiff further agrees that Guilfoil “ may immediately enter on the land and remain thereon and cultivate the same, so long as he shall fulfill and perform” the agreement on his part “and no longer.”
This is the entire agreement on the part of the plaintiff. And, at a superficial glance, it might seem that the plaintiff had undertaken to convey and transfer the possession of the land. A little reflection, however, will show that this is not the effect of the contract. Suppose, upon the attempt of Guilfoil to go into the possession, he had been opposed by some person in possession, or having the right to it as against the plaintiff, and that he had been thereby prevented from obtaining possession, would the plaintiff have [301]*301been liable, under this contract, for damages ? Certainly not. It is quite clear that the provision allowing Guilfoil to go into possession was intended to be co-extensive only with that in respect to the conveyance of the title, — a mere quit-claim of any right of possession the plaintiff might have, — and like that in reference to the title, on condition that he should turn out to have had such possession or right. He merely says to Guilfoil, “Bo far as I am concerned you shall be at liberty to take the possession. If I have a right to it, it is yours. If I have none, you get none.”
This certainly cannot be held equivalent to transferring the possession or putting Guilfoil in possession, nor is there any such mutuality as to create an estoppel.
So far as these provisions on the part of the plaintiff are concerned, I cannot see that there would have been any impropriety or inconsistency in Guilfoil’s taking any number of separate contracts of the same kind, from as many different parties, or how the provisions of, or the obligations under, one of them would conflict with those of the others.
There is nothing, therefore, in the provisions of the plaintiff’s agreement amounting to an assertion of possession, or right of possession, or the transfer of either to Guilfoil, without some evidence that he had such right to transfer, and nothing therefore to estop him from denying such right of possession in the plaintiff.
But the contract contains certain stipulations on the part of Guilfoil, and we are to see whether these estopped him upon the question of possession.
In immediate connection with the provision by which plaintiff asserts that Guilfoil may enter on the land and cultivate the same as long as he shall fulfill and perform the contract, and no longer, Guilfoil agrees that, “if he shall at any time hereafter violate or neglect to fulfill any [302]*302of said agreements, he shall forfeit all right or claim under this contract, and be liable to the party of the first part for damages, and shall also bo liable to be removed from said land in the same manner as is provided by law for the removal of ^ tenant that holds over after the expiration of a term specified in his lease.” This is all the provision on the part of Guilfoil which affects the question I am discussing. No general right of re-entry is reserved, and there is no covenant to take the possession unless this can be so construed; and there being no other estoppel to the denial of the plaintiff’s title or right of possession, and no evidence showing or tending to show that the plaintiff either had or conveyed any interest in the land whatever, there is nothing tending to establish the relation of landlord and tenant before or after the breach, unless the covenant just quoted has that effect.
The plaintiff’s right, therefore, to recover in this action depends upon this covenant alone, and he must be confined to such remedy as this covenant gives him; if this is defective there is nothing upon which he can fall back to help out its deficiencies. ■
We think it clear from the language of this covenant that it refers to, and was intended to provide only for the statute remedy by summary proceedings, by which landlords aro authorized to recover possession of lands “held over by tenants after the time for which they arc demised or let,” as expressly provided by the statute for the particular species of case or state of facts mentioned in the covenant. See Chapter 150, Compiled Laws, §§ 12 to 18, especially the first subdivision of section twelve, to which we think the covenant evidently refers.
In a proceeding under this statute against Guilfoil, after the breach of the agreement, this covenant, if valid, would estop him from denying the plaintiff’s right of possession, [303]*303or rather his right to recover it in such proceeding only, for this is the extent of the covenant; and we think it has no application, and cannot properly be extended to an action of ejectment.
The result is, therefore, that if this covenant is valid (of which, there may be room for doubt when applied to such a state of facts as is here shown), it does not help the plaintiff in this action of ejectment; if not valid it would not help him in this or any other case. In either event he has failed to show any thing which tends to establish a title or right of possession upon which he can maintain ejectment, or any state of facts which estops the defendant from denying his title or right of possession. He, therefore, made no case upon the evidence upon which, it would have been competent for the jury to find a verdict in his favor.
The charge of the Court, so far as it was in conflict with the principles or the result above stated, was erroneous.
The judgment must be reversed with costs and a new trial awarded.
The other Justices concurred.